By Jason Rantanen
Enfish v. Microsoft (Fed. Cir. 2016) Download Enfish
Moore, Taranto, Hughes (author)
In re TLI Communications Patent Litigation (Fed. Cir. 2016) Download TLI
Panel: Dyk, Schall, Hughes (author)
This month’s decision in Enfish was an overnight sensation—almost literally, as mere days later the PTO issued the new examiner guidance to implement the decision that Dennis wrote about last week. That guidance emphasizes the Federal Circuit’s recognition of Mayo Step-1 as a meaningful inquiry and focuses on particular aspects of Enfish that relate to that inquiry: comparisons to prior abstract idea determinations; a caution against operating at too high a level of abstraction of the claims, and the rejection of the tissue-paper argument that use of a computer automatically dooms the claim (it doesn’t).
Although receiving only light treatment in the guidance, in my view the critical analytical move in Enfish is more than just the court’s recognition of Mayo Step 1 as meaningful—it is the analytical framework that the Federal Circuit constructs that ultimately determines the outcome. At its heart, Enfish contains a seemingly simple categorization scheme, one that offers the promise of a quick and easy way out of the § 101 maelstrom. Yet, looking deeper, my sense is that it would be a mistake to rely too heavily on the Enfish framework as a universal solution, even in the computer technology space.
On its own terms, the Enfish framework sets up a choice between “whether the focus of the claims is on the specific asserted improvement in computer capabilities…or, instead, on a process that qualifies as an “abstract idea” for which computers are invoked merely as a tool.” Enfish Slip Op. at 11. In other words, is the claimed invention something that makes a computer work better? Or are computers merely being used to do another task? If the former, the subject matter is patentable; if the latter, the claim must be subjected to Mayo Step-2. This distinction sets up the ultimate conclusion in Enfish that the claims are not directed to an abstract idea and serves as the analytical difference between Enfish and In re TLI Patent Litigation, a subsequent opinion concluding that the challenged claims are not directed to patentable subject matter.
In Enfish, Judge Hughes introduced the “improvement in computer capabilities”/”invoked merely as a tool” dichotomy after rejecting the idea that “all improvements in computer-related technology are inherently abstract and, therefore, must be considered at step two.” Id. In broad terms, the inquiry involves considering “whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea,” but the framework is made more concrete in the next sentence. That sentence contains the language quoted above, a binary categorization whose importance grows as it is repeated throughout the remainder of the discussion of patentable subject matter:
- “In this case [] the plain focus of the claims is on an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.” Id. at 12.
- “we find that the claims at issue in this appeal are not directed to an abstract idea within the meaning of Alice. Rather, they are directed to a specific improvement to the way computers operate.” Id.
- “the claims here are directed to an improvement in the functioning of a computer. In contrast, the claims at issue in Alice and Versata can readily be understood as imply adding conventional computer components to well-known business practices.” Id. at 16.
- “And unlike the claims here that are directed to a specific improvement to computer functionality, the patent ineligible claims at issue in other cases recited use of an abstract mathematical formula on any general purpose computer.” Id. at 17.
- “In other words, we are not faced with a situation where general-purpose computer components are added post-hoc to a fundamental economic practice or mathematical equation. Rather, the claims are directed to a specific implementation of a solution to a problem in the software arts. Id. at 18.
Central to the Enfish framework is a recognition and definition of what is not patentable subject matter. The opinion does not try to fight the idea that there is some subject matter that is not patentable. Instead, it acknowledges that there are limits on patentable subject matter and works with those limits. Judge Hughes considers the precedents in this area and identifies them as fundamentally involving the use of a computer as a general-purpose tool. By defining what is not patentable subject matter in this way, Judge Hughes is freed to identify some “other” that is outside that impermissible category: developments that improve on the operation of the computer itself. Here, although the claimed invention could conceivably be articulated as an abstract idea, placing it within the framework leads to only one outcome: it is an improvement in computer capability, and thus patentable subject matter.
But viewing Enfish as the end-all of abstract ideas analysis, while appealing, would a mistake. Judge Hughes’ next patentable subject matter opinion, issued just a few days latter, suggests that there is more to the analysis than just mechanically applying the Enfish framework. At first, In re TLI Patent Litigation starts out with the Enfish framework: that “a relevant inquiry at step one is ‘to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea.'” TLI Slip Op. at 8, quoting Enfish. In Enfish, he observed,:
“We contrasted claims ‘directed to an improvement in the functioning of a computer’ with claims ‘simply adding conventional computer components to well-known business practices,’ or claims reciting ‘use of an abstract mathematical formula on any general purpose computer,” or “a purely conventional computer implementation of a mathematical formula,’ or ‘generalized steps to be performed on a computer using conventional computer activity.'”
Id., quoting Enfish. Unlike in Enfish, however, “the claims here are not directed to a specific improvement to computer functionality. Rather, they are directed to the use of conventional or generic technology in a nascent but well-known environment, without any claim that the invention reflects an inventive solution to any problem presented by combining the two.” Id.
In re TLI raises two additional points to consider, however. First, in addition to defining what is not patentable subject matter, Judge Hughes articulates some characteristics of subject matter that is patentable: “a solution to a ‘technological problem’ as was the case in Diamond v. Diehr” or an “attempt to solve a challenge particular to the Internet.” Id. at 10. Left unclear is the meaning of this discussion: does one only get to the solution to a technological problem inquiry if the claims are not directed to a specific improvement to computer functionality? Or is the analysis more flexible than Enfish implies?
More significant are concerns about the bright-line nature of the Enfish approach. While bright-line rules can be helpful, Bilski v. Kappos demonstrates the risk associated with their use in the patentable subject matter area. Judge Hughes recognizes this concern in TLI, noting “the Supreme Court’s rejection of ‘categorical rules’ to decide subject matter eligibility.'” Id. The Federal Circuit will need to be careful to avoid becoming overly reliant on the Enfish framework, especially in areas where it does not fit well. With the benefit of the last few years of experience, hopefully the Federal Circuit will be able to avoid this pitfall. Even as this issue works its way out, however, I suspect to see the Enfish framework drawn upon heavily at the PTO and in district courts in the near future.
An excellent addition by Paul Cole is below at 17.3 – this should not be overlooked!
I don’t think I agree with a lot of it. Ginned cotton might not be patentable (because cotton without seeds was old) but I think it is not naturally occurring and is therefore an eligible manufacture. If not ginned cotton, how about brushed denim or spun wool? What about brushed aluminum?
Are distilled spirits the same as the stuff on the other side of the coil? If you think so, you will not be bar tending at any event I attend…
I do not agree with all of Paul’s views either / but the post here was just a public service because I think that he takes an inte11ectually honest and rather thoughtful approach to something that SOOO many are only too eager to reach for the desired ends with NO critical thinking of the means to those ends.
For that alone Paul deserves some kudos.
@ Les
The cases here depend on “manufacture” and since they are also based on tariff cases are somewhat pragmatic.
The reason why ginned cotton is not eligible is not because ginned cotton is naturally occurring but that it is insufficiently different from the natural material to qualify, having the same essential utility.
I am a frequent AIPLA attender, and will much regret not sharing an new and useful alcoholic beverage with you.
Paul –
I think someone attempting to weave a pair of Levi’s from un-ginned cotton would disagree with you about the sufficiency of the difference.
As for the rest….. as long as you ain’t the one pouring…
Alas, I am not a frequent AIPLA attender…. and now that I have let my membership lapse in view of their AIA support…. will attend even less (not that that is possible).
An interesting – even civil to a surprising degree – discussion has broken out below on the non-patent topic of the presidential race.
I invite readers to join in below (or here, if that be more convenient, seeing as the thread reply limit has been reached on several nuanced threads) .
6: I have to say that anon does impress me somewhat for sticking to his guns
LOL – Does 6 actually believe that “anon” was ever a supporter a Bernie Sanders??? That is truly hilarious.
while so many liberal sheep do like MM and vote against the person that MM and other bernie bros must surely hugely favor.
I’m not voting “against” anybody. The subject is the general election in November. The candidates for the two major parties have been chosen. Trump is the Republican candidate. Clinton is the Democratic candidate.
Voting for Clinton isn’t a vote “against” Sanders. Good grief. It’s a vote for Clinton and, if it’s “against” anything, it’s a vote against an absurd celebrity t0 0l who makes the Schwarzengr0per look like an honest genius by comparison.
6: I don’t know if what you’re proposing to fix in merica is on the top of my list of things to fix. First maybe we de-power the liberal elite machine.
LOL. The what? Conservatrds never cease to amuse.
6: forcing trans people in your women’s room
LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL
Tell us what happened, 6. Sounds s00per dooper traumatic.
LOLOLOLOLOLOLOLOLOLOLOL
Some places in the country don’t want trans people using the opposite restroom, ur fed gov. is fixing to force them to have to allow that. I personally don’t mind either way, but I don’t see anything in the constitution assuring trans people the ability to use whichever restroom, and I don’t see anything like that in either of the lawls the feds are citing. So, what I see is federal overreach by the pressy.
“LOL – Does 6 actually believe that “anon” was ever a supporter a Bernie Sanders??? That is truly hilarious.”
?
Not sure what your problem is here Malcolm. I have been more than clear that was, is, and shall be my choice in the upcoming election.
Oh wait, I don’t fit into your nice little meme, so what I say (repeatedly to your repeated questions) simply “must not be true.”
Your “fantasy world” is not of this world.
And you labeling 6 a “conservatrd” just because he calls out “the liberal elite machine” is such a liberal elite machine move.
I don’t fit into your nice little meme,
LOL
The fact that you and NWPA allege to be Sanders supporters actually is perfectly consistent with “my meme”.
But don’t worry! You both are very serious people. We all believe you!
LOL
“actually is perfectly consistent with “my meme”.”
Just not the meme you has in mind – but that’s A Whole nother matter.
he calls out “the liberal elite machine”
Excuse me … the what?
LOLOLOLOLOLOLOLOLOL
“Does 6 actually believe that “anon” was ever a supporter a Bernie Sanders??? That is truly hilarious”
Well, he says he was. He seems to be a bonafide berniebro to me.
“I’m not voting “against” anybody”
Yes, my sentence there was incorrectly/confusingly formatted. It was supposed to be saying that you and your fellow liberal block voter sheep are voting for the candidate that you don’t favor because they’re the favorite of the elites calling the shots in your party.
“LOL. The what? Conservatrds never cease to amuse.”
The “liberal elite machine”. It’s basically the “party bosses”, they’re high ranking people in the democratic party structure, as in the structure of the party, not the actual candidates usually (though there is some overlap with candidates, and elected people like DWS), and they include the delegates/superdelegates and all the rest of the people calling the shots in the party itself. I didn’t know what it was until just recently myself. It was quite eye opening to see what was going on against Bernie (and Trump on the other side). Someone should make an infographic of the liberal and conservative elite machines and how they operate so people can understand easier. The reason I care all that much about the liberal elite machine compared to the conservative one is that the conservative one appears to be much less effective, or at least was this time around, as they didn’t stop trump.
No serious person could think that people on the left are more authoritarian (i.e. sheep) than people on the right. True paladins of the right understand which side is moored to reality and which side is not.
“Rove said that guys like me were “in what we call the reality-based community,” which he defined as people who “believe that solutions emerge from your judicious study of discernible reality.” … “That’s not the way the world really works anymore,” he continued. “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do”
link to en.wikipedia.org
Take it from the guy who was the most powerful man in the world for eight years, and pretty powerful for four more after that.
“No serious person could think that people on the left are more authoritarian (i.e. sheep) than people on the right”
They do today. Observe anon et al. and the crowd of “culture scolds” and “grievance/guilt mongers”. You’re right that way back in the past it was not so, it’s a relatively recent phenomena that the left far and away surpassed the right in certain aspects related to this. After the right lost the culture war the left has run rampant.
Interesting quote from Rove, but I’m not sure I quite fully understand it. He seems to have defined a nice term, which is cool, but then he seems to be saying that since we’re an empire we just go around creating what we see fit as a reality where ever we go thus forever leaving behind the group of people he just defined.
Rove was expressing pure nihilism: reality is what we say it is because we hold power and our followers believe what we tell them.
I would not dare to suggest that authoritarianism does not happen in leftward leaning people; only that the frequency and intensity is less.
The best observer of the Trump situation was Eric Hoffer. ‘The True Believer” is absolutely essential reading on the subject.
“I would not dare to suggest that authoritarianism does not happen in leftward leaning people; only that the frequency and intensity is less.”
That’s how it used to be maybe. Not anymore. Once they get power, they’ve tried of late to be authoritarian. Observe what is going on with obama right at this very minute with the bathroom kerfuffle.
“Juan Linz’s influential 1964 description of authoritarianism[1] characterized authoritarian political systems by four qualities:
limited political pluralism; that is, such regimes place constraints on political institutions and groups like legislatures, political parties and interest groups;
a basis for legitimacy based on emotion, especially the identification of the regime as a necessary evil to combat “easily recognizable societal problems” such as underdevelopment or insurgency;
minimal social mobilization most often caused by constraints on the public such as suppression of political opponents and anti-regime activity;
informally defined executive power with often vague and shifting powers.[2]”
More and more we see the left’s only (or major) reason to exist being “emotion” issues. Don’t we feel super bad for the uninsured, don’t we feel super bad for single moms, don’t we feel super bad insert x, y z here. And more and more we see informal definitions on the executive’s power being what they hold to. Observe obama’s last several controversial executive orders, and the decisions of his depts that affect the whole country. More and more we see them grasping at legal straws completely divorced from the original laws/constitutional provisions that are at issue to implement their agenda on the whole nation (gay marriage, abortion) through the not-so democratic branch of the judiciary, often over the actual protest of the republic itself. More and more the leftist scolds overuse and devalue “racism” “misogyny” “bigot” “homophobe” “hate speech”. You need look no further than our own anon. He’s likely never even met an actual racist, bigot etc. in his whole life. And they’re all like that, because in the areas they’re from those things are endangered species, if not extinct. So, they keep broadening the definitions of their speech silencing “weapons” so that they can still have some power to stifle opinions they don’t like. Yesterday’s perfectly normal person is now tots the worst bigot of the evars, because barely any real bigots remain and they’re marginalized. Anon, himself, like his fellow rank and file PC policeman don’t probably actually understand any of this most likely, as most of them don’t. But it’s what is happening on a broader scale. Don’t like the proposition of building a wall to keep out illegal immigrants to enforce the law on the books? Simple, call the people proposing it tots racist. Because obviously anyone that is against illegal immigration is tots bigoted. Don’t like the proposition that accused repaist’s get due process in a court of law before we deem them guilty? Simple, call people that are against lowering the standard of evidence to the floor, or whatever other due process proposals the left made this week (kick them out of college based on that lower standard of evidence like in CA), tots misogynist.
And I should be clear, I personally don’t care either way about most of those political issues above (although the getting rid of due process is very concerning in any criminal trial, or proceeding that might result in expulsion from college), it is the way that the left is bringing their agenda about that does concern me. Let them win some elections in the senate/house before they just go hog wild for goodness sakes. That’s what those votes are supposed to be for.
And with that being said, it is totally true also that the right is fixing to fight back with their own authoritarian figure, one D Trump.
“I would not dare to suggest that authoritarianism does not happen in leftward leaning people; only that the frequency and intensity is less.”
That’s how it used to be maybe. Not anymore. Once they get power, they’ve tried of late to be authoritarian. Observe what is going on with obama right at this very minute with the bathroom kerf uffle.
“Juan Linz’s influential 1964 description of authoritarianism[1] characterized authoritarian political systems by four qualities:
limited political pluralism; that is, such regimes place constraints on political institutions and groups like legislatures, political parties and interest groups;
a basis for legitimacy based on emotion, especially the identification of the regime as a necessary evil to combat “easily recognizable societal problems” such as underdevelopment or insurgency;
minimal social mobilization most often caused by constraints on the public such as suppression of political opponents and anti-regime activity;
informally defined executive power with often vague and shifting powers.[2]”
More and more we see the left’s only (or major) reason to exist being “emotion” issues. Don’t we feel super bad for the uninsured, don’t we feel super bad for single moms, don’t we feel super bad insert x, y z here. And more and more we see informal definitions on the executive’s power being what they hold to. Observe obama’s last several controversial executive orders, and the decisions of his depts that affect the whole country. More and more we see them grasping at legal straws completely divorced from the original laws/constitutional provisions that are at issue to implement their agenda on the whole nation (gay marriage, abortion) through the not-so democratic branch of the judiciary, often over the actual protest of the republic itself. More and more the leftist scolds overuse and devalue “raci sm” “misogyny” “bi got” “hom ophobe” “ha te speech”. You need look no further than our own anon. He’s likely never even met an actual ra cist, b igot etc. in his whole life. And they’re all like that, because in the areas they’re from those things are endangered species, if not extinct. So, they keep broadening the definitions of their speech silencing “weapons” so that they can still have some power to stifle opinions they don’t like. Yesterday’s perfectly normal person is now tots the worst bi got of the evars, because barely any real bi gots remain and they’re marginalized. Anon, himself, like his fellow rank and file PC policeman don’t probably actually understand any of this most likely, as most of them don’t. But it’s what is happening on a broader scale. Don’t like the proposition of building a wall to keep out illegal immigrants to enforce the law on the books? Simple, call the people proposing it tots rac ist. Because obviously anyone that is against illegal immigration is tots big oted. Don’t like the proposition that accused repaist’s get due process in a court of law before we deem them guil ty? Simple, call people that are against lowering the standard of evidence to the floor, or whatever other due process proposals the left made this week (kick them out of college based on that lower standard of evidence like in CA), tots misogynist.
And I should be clear, I personally don’t care either way about most of those political issues above (although the getting rid of due process is very concerning in any criminal trial, or proceeding that might result in expulsion from college), it is the way that the left is bringing their agenda about that does concern me. Let them win some elections in the senate/house before they just go hog wild for goodness sakes. That’s what those votes are supposed to be for.
And with that being said, it is totally true also that the right is fixing to fight back with their own authoritarian figure, one D Trump.
You are grossly – and sadly – quite mistaken in your portrayal of me, 6.
Quite in fact, I am the one CALLING for people to engage – albeit, to engage in a meaningful and inte11ectually honest manner.
I am the one wanting dialogue – as opposed to the drive-by monologues of others who refuse to even acknowledge the counter points raised to their “mantras”
“ it is the way that the left is bringing their agenda about that does concern me. ” – you just repeated my biggest gripe about the biggest blights on these boards.
“albeit, to engage in a meaningful and inte11ectually honest manner.”
Albeit in your pre-approved format. I.e. what the kids are calling a “safe space” nowadays. In other words, and I just realized this, you’ve created your own “patent talk safe space” and demand that other people respect your pre-approved format. Folks like yourself were the precursors to today’s problem children in university. What you just described is exactly what many leftists are doing today with regards to a diverse range of topics from political, to racial, to x y z. It’s a cancer bro.
But anon, your “patent talk safe space” isn’t even what I’m talking about in this thread. In this thread I referenced you because of your PC policing. That’s quite different.
” you just repeated my biggest gripe about the biggest blights on these boards.”
Yes I know anon, and it is quite a turn for the worst in terms of how the government is going about its business in a diverse range of fields. It isn’t the best governance and frankly I lay the responsibility for that bad, or not so great, governance at the feet of the legislature.
Lol – my “pre-approved format” is content neutral and rather invites a more meaningful dialogue.
That is a rather huge and important difference – and has ZERO to do with any type of politically correct “safe space.”
Your characterization remains absolutely flawed.
(and I haven’t even gotten to how I have informed the Professor that I am perfectly willing to “play by the rules that I see enforced” – which indicates that it is NOT my rules (or attempts at rules) that you want to ascribe to me)
“Lol – my “pre-approved format” is content neutral and rather invites a more meaningful dialogue.”
That’s what all people in their safe space think. Of course, when someone says something they don’t like, they go all crazy like.
Not at all 6 – see you twisting things again to play your own version of “control.”
This is not a matter of “saying things not liked” – it is a matter of WHY certain things are not liked – see your OWN post that I identified as mirroring my disposition right above at 18.4.1.1.2.1.
You are trapped – again.
6, there is a spectrum from freedom of speech to thought control ala Orwell’s 1984. On the one hand we have North Korea. On the other the relative freedom authors had during the enlightenment.
Taking things back in time, up until Tiberius, the Roman Republic/Empire had real freedom of speech. There was a flowering of literature, history and political speech. Then along came the secret police of Tiberius where “enemies” were sought out and terminated. People had to be very careful about what they said. Sic transit Gloria Mundi.
“After asserting that Romans considered free speech as part of the liberties provided by the Republican regime, it is affirmed that it was not regarded as a human right but as a political entitlement. As nowadays, freedom of speech was valued not only for its importance to the speaker, but also for its relevance to the political system. The paper states that during the Republic, this right was intensively exercised trough both institutional and not institutional settings. Among the former were the contiones, the Senate, the courts and, surprisingly, the army. The latter were mainly the Forum, private associations and some kind of arts. The advent of the Empire deeply affected freedom of speech. Although it did not disappeared altogether, it ceased to be considered as a right (it was only tolerated) and became troublesome to the new political regime. Regarding its legal status, freedom of speech was never recognized as a right by statute. In contrast, legal restrictions evolved from a soft start under the XII Tables, to increasing severity at the end of the Republic, to straight harshness during the Empire.”
link to oalib.com
It is sad that freedom of speech and thought has gone out of fashion for some Americans.
But, what people value so much about this blog is its absolute freedom speech. And for that, we owe Dennis many thanks.
The place with the LEAST amount of freedom of expression are those places captured by the left-leaning “politically correct.” The “ultra-liberal” (6’s liberal elite machine folks) are some of the least open-minded people that I have ever met.
“The place with the LEAST amount of freedom of expression are those places captured by the left-leaning “politically correct.” The “ultra-liberal” (6’s liberal elite machine folks) are some of the least open-minded people that I have ever met.”
^This coming out of the mouth of our local PC constable. He’s correct of course, but he apparently hasn’t yet done the math as to why these people are the way they are. Hint anon: it’s because of PC policeman like yourself. You laid the ground work for them. All they’re doing is taking it to the next level. If they’re going to be beat, people like yourself have to stop walking the PC po po beat on the regular.
LOL – again with the MIS-characterization of me being “PC.”
There is a difference in being “PC” and in being inte11ectually honest and fully ENGAGING the counter points raised in a dialogue, and what Ned and Malcolm so routinely do in their drive-by monologues.
This has ZERO to do with what I lambaste others about 6. You need to pay better attention to what I actually write.
So routinely do NOT do….
“again with the MIS-characterization of me being “PC.””
Anon there’s only one person on this website that routinely calls people racist, misogynist, bigoted etc. all the PC buzzwords. That’s you bro. MM and NWPA jump in from time to time, usually for a laugh, but mainly its just you. You didn’t thunk those buzzwords up yourself, and you didn’t thunk up using them as “weapons” in conversation, you learned them and that behavior from the PC crowd, probably in the 90’s. And now, that same political horsehockey is growing out of control in Merica, because youngens are taking it even further.
“There is a difference in being “PC” and in being inte11ectually honest and fully ENGAGING the counter points raised in a dialogue”
Yes, there is. I’m not discussing your “patent talk safe space” pre-conditions for a conversation on PO right now. I’m talking about your penchant for using pc policeman buzzwords. They’re two separate things, as you note.
“This has ZERO to do with what I lambaste others about 6”
That is correct, your being a PC policeman doesn’t have much to do with people violating your “patent talk safe space” and you “lambasting” them for doing so.
Except not 6.
I don’t call anyone “racist,” and I have called you misogynist because you ARE misogynist.
Don’t play the “whatever” card when all I am doing is being accurate with you.
There is no attempt at ANY “PC” control with my accurate comments.
Once again, your characterization remains absolutely flawed.
Quite in fact you are one of the ones that engage in PC “control” with all of your accusations for me of the meds/illness types.
You forgot about that.
“I don’t call anyone “racist,” and I have called you misogynist because you ARE misogynist.”
^That’s the PC po po for you.
“There is no attempt at ANY “PC” control with my accurate comments.”
That’s what all PC po po say anon.
Ask yourself this: IF you’re not attempting “control”, or more precisely looking to discredit the speaker or silence them, then why bring that subject up at all? Giggles? Misogynist or not, either one has no bearing on my views on substantive patent lawl. The answer is because you are using it as a “tool” or “weapon” to discredit the speaker, just like all the rest of the PC po po generally do.
It isn’t a “characterization” bro, it’s an observation. There’s a reason why nobody else joins in with you labeling me or MM, or whomever as a racist/misogynist/bigot. Because they’re not on the PC police beat.
“Quite in fact you are one of the ones that engage in PC “control” with all of your accusations for me of the meds/illness types.
You forgot about that.”
Someone being medically ill is not a PC buzzword that PC police go about policing bro. The PC buzzword most closely linked with medical illness is “ableist”, meaning the person is against people who are disabled. I’m actually kind of surprised you haven’t called me an ableist yet, though I suppose I took pains to indicate that I wasn’t biased against people for having such disabilities. Indeed, even if it was an if I was attempting to be a PC police regarding your medical illness, then you’d be getting sympathy points for my saying you are mentally disabled, not being rejected for having a mental illness. That’s what PC policing is ultimately about. The oppression olympics. It’s amazing how ignorant people are still about what PCness actually is.
And anon, don’t feel bad bro, I know you’re near surely from the west coast if not CA itself. That’s the fountainhead of this nonsense, it’s the PC culture you were raised in that instilled this nonsense in you.
There is NOTHING PC po po about being accurate in a description of you.
You are misapplying the “po po” tag – no doubt in your own attempt to be PC controlling.
You’re behind the times geezer. Go watch some youtubes and alternative media away from the mainstream media on TV and newspapers, I’m using the term exactly correctly. Exactly in the context in which it is designed to be used.
“Geezer“…?
Now you are desparately trying to Tr011 me with rather odd ad hominem that has nothing to do with the conversation.
Sorry – not biting.
You are NOT using the term “exactly correctly” – not even remotely correctly.
The context here is plain: you yourself are attempting to control the posts through a “shaming” mechanism of “PC-scolding” being applied to someone you do not like (and that someone merely accurately reflecting your very own words and choices of words).
You are confusing my accurate reflections with your desire to NOT be held accountable for what you choose to say or how you say it. You will not be able to talk your way out of something you talked your way into – and certainly not when you are trying to use the very device you talk about as a control mechanism. Reflect again on your own gripe as I noted at 18.4.1.1.2.1.
“It is sad that freedom of speech and thought has gone out of fashion for some Americans.”
It absolutely has. The left in particular doesn’t even want to hear views that differ from their own, and this is especially bad in the crop of students coming out these days. They’re in love with their “safe spaces”, aka “idea echo chambers”.
Way too funny – the Prof’s own “politeness” boards have bottled up my reply.
6, you are talking about this site’s biggest blights Malcolm and Ned.
I’ve always said that alternative views and opinions are fully welcome – and that it is the dissembling and deceptions about HOW those views are put forth that are THE problem.
Fr1ck1ng amazing – the three little arrow keys for “see above” are what tripped the filter.
That’s just messed up.
“They do today. Observe anon et al. and the crowd of “culture scolds” and “grievance/guilt mongers””
Not sure what you are trying to say here 6 – as far as Left AND Right – BOTH are as bad as the other.
Those denying this – and trying to say that one is worse than the other (while playing the exact same games) are the real sheep.
“Not sure what you are trying to say here 6 – as far as Left AND Right – BOTH are as bad as the other.”
Agreed entirely but the right’s culture scolds are practically powerless everywhere except maybe the deep south and the midwest. And that’s a big maybe.
I do not think that you understand that I am NOT “from the Right.”
I never said you were.
Read again the exchange – and my quote of yours at 18.1.4.1.3. – you seek to impugn me and then forget that you have done so (part of your very own PC control tactics…)
Anon, saying that you’re a culture scold, aka telling people they’re misogynists (racists bigots etc), is not “impugning” you. It’s pointing out a fact about your behavior that you just now admitted to doing just above, you simply justify your scolding because according to you I tots am a misogynist. That’s what is known as being a culture scold. And it isn’t an “impugning”. It’s just pointing out behavior of yours that has no place in society any longer. Just stop with the culture scolding bro.
Except not 6 – as I clearly pointed out that making an accurate observation is NOT the “scold” that you want to characterize.
It is just two different things, so there is NO “admission” from me.
You continue to be off – and badly so.
You just contradicted yourself 6. Not all that surprising though, but your little ‘game’ here is exposed for the sham that it is.
“as I clearly pointed out that making an accurate observation is NOT the “scold” that you want to characterize.”
It isn’t what “I” want to characterize, it’s what the new reality is going to be in the next few years. Enjoy your culture scolding days while they last. You know you lack this new thing called “evidence” of any actual misogynistic things I supposedly did, or my actually showing any “hate” to women, so you are being unreasonable in making your assertion. The only thing you think you have is evidence of cultural things that I do that you think are misogynistic (because you were told that they are by feminists and/or feminized society). And the only thing you can do is scold me for them, so that’s exactly what you do.
That is, by definition, a culture scold.
“It is just two different things, so there is NO “admission” from me.”
Nah bro, what you just admitted to is exactly the definition of a culture scold. You’ll be hearing about it more and more in the coming decade, unless we succeed in wiping that kind of behavior out sooner than expected.
You are caught in attempting to do the very thing you are accusing me of, 6 – you are the one using a PC control mechanism here, accusing me of being a “culture scold.”
Your shallow control attempt is beyond transparent.
Trump that suggestion!
Several contributers have commented in this thread, favourably, on my contributions, which emboldens me to contribute again.
Bowler Hat wants to hear me on the UK “contribution” approach to eligibility. Plug Aerotel into Wikipedia to read about it. Sure, I think Hughes and, here, MM are following this line.
But the EPO Appeal Boards have given it up as unworkable. For the EPO, you treat eligibility as an absolute requirement. Is the claimed subject matter within the ambit of the useful arts (to use US terminology) or not. If yes, and even if the subject matter is notoriously old or obvious, move on to novelty and obviousness. If not, reject as ineligible.
This scheme is workable in practice only at the EPO, because only the EPO has a compatible way to handle the issues of novelty and inventive step. At the EPO, though, it works nicely, despite the Engish judge disparaging it as “intellectually dishonest”. Vice versa, at the EPO they think the UK approach is not reconcilable with the relevant provisions of the EPC.
Paul Cole criticises Hughes because he moves directly to the judicial exceptions (abstract idea et al). well, he has to do that, doesn’t he, if he is following a UK-style “contribution approach”. For what actually is NOT within the ambit of the useful arts? Only the exceptions, right? Everything else is “in”, isn’t it?
This thread shows that the disagreement how to “do” eligibility is equally lively, both sides of the Atlantic.
Hearing an echo is NOT an invitation to continue the shilling that you do with the EPO uber alles – don’t care about the choices of the different sovereigns approach that has been pointed out to you.
Far better to recognize the differences instead of glossing over them (you really want to pretend that Useful Arts is the same as Technical Arts when they just are not).
You do not develop critical thinking by only paying attention to those that cheer you on.
My point is that the debate is lively, on both sides of the Atlantic, about the pro’s and con’s of bringing novelty into the eligibility test. It matters not, to that debate, whether the subject matter at issue is “within the useful arts” or “has technical character”. If you don’t believe me, ask Night Writer or MM. They represent here the two opposed camps and they neither display any reticence about going after each other, hammer and tongs, just like the EPO and the UK patents judges do, albeit with more restraint in their choice of words than is displayed here .
But the debate in Europe has been going on since 1978 and so, by now has seen all the arguments, for and against.
You also fail to note that here in the States patent law is not a common law item – OUR sovereign explicitly set the power to write (including writing by evolution over time) strictly for our legislative branch.
This is yet another point that you gloss over in your hurry to shill for all things EPO uber alles.
MD: the debate in Europe has been going on since 1978 and so, by now has seen all the arguments, for and against.
The “arguments” relate to exactly what sort of new steps may be considered “inventive” for the purposes of the “inventive step” test, and whether the distinctions that are made between the new steps are sensible and defensible.
But no patent system — literally none that has ever existed or will ever exist — grants patents on claims merely because they recite (1) an old “process” or an old “manufacture” plus (2) something new, regardless of what that something is.
Today’s generous gift of straw from Malcolm with his statement of:
“grants patents on claims merely because they recite (1) an old “process” or an old “manufacture” plus (2) something new, regardless of what that something is.”
Since NOBODY has ever said such a thing, I hope that you have a wonderful time beating up on that “argument” of “plus (2) something new, regardless of what that something is.”
You may be confused with people wanting the different sections of law to be applied appropriately instead of mashing up the law (or “interpretating-new-law”) to arrive at a desired ends without going through the proper means – but how many times have you posted in that errant manner of merely wanting a certain ends, no matter what the means?
Maybe if you paid a little bit more attention to actually constructing a proper legal means to obtain the ends that you so feverishly want, you would not be tempted to make such egregious mistakes.
Just a thought for you to consider in the next Decade of your postings.
Since NOBODY has ever said such a thing,
LOLOLOLOLOLOL
Maybe if you run really really fast you’ll catch up with the discussion by Monday, “anon.”
In the meantime, do keep the laughs at your expense coming.
Try making your point in short descriptive sentences Malcolm.
NOBODY has ever said “regardless” – as if some other law (already written by Congress) is not in place, and ALL that has to be done is “plus something new regardless”.
Running “really really fast” only applies if “catching up” is catching up in the right direction (think vector, not just magnitude). You are NOT something to be caught up to, since your vector is in the wrong direction.
NOBODY has ever said “regardless”
That’s nice. What color pills are you dropping today?
Just how much paint chips did you eat as a child?
That’s funny, “anon”, because both you and your bff NWPA’s comments have always reeked of Generation Lead.
Malcolm, the response fits you because your response is a non-sense non-response.
You turning around and accusing me of that which you do….
Gee, like that’s not one of your classic memes….
[super eye roll]
MD: the EPO Appeal Boards have given it up [the “contribution” approach] as unworkable.
Except they haven’t because they perform the identical analysis and call it “evaluating the inventive step.” It’s really just semantics, MD.
Yes, of course, MM. The English courts are always stressing that the English and EPO approaches come to the same thing in the end.
I don’t agree that it is no more than “semantics”. Rather, it is the imperative of finding a legal line of reasoning that is robust enough to endure, and to see off the critics crawling out of (or even into) the cracks and busting the edifice apart. The “patent maximalists” if you will. One thing’s for sure. You do need a robust no-nonsense (I mean legal nonsense) approach, to prevent the creep of patent rights into areas of subject matter where patent rights have no business bleeding into. Your remarks on the Planet Blue case suggest to me that you are apprehensive about such creep. Quite right to be apprehensive. Zealous lawyering on behalf of moneyed investors can creep very effectively, if given the slightest chance.
Fixed for you, MaxDrei:
Rather, it is the imperative of finding a legal line of reasoning that is robust enough to endure, and to see off the critics crawling out of (or even into) the cracks and busting the edifice apart. The “anti-patent maximalists” if you will.
I think that there is a fundamental and insufficiently recognised failure of analysis concerning the judicial exceptions.
If we were to draw a Venn diagram of Section 101, a first set would be provided by the specifically eligible categories under the section. As explained in Bilski in the judgment of Justice Stevens, the over-riding category is “manufacture”, from which “process”, “composition of matter” and “apparatus” evolved.
A second set is provided by the so-called judicial exceptions – laws of nature, natural phenomena and abstract ideas. A dignified snail (it was a public holiday yesterday and I saw several of these creatures crossing my lawn) would have the mental capacity to appreciate that there is no intersection between these exceptions and the eligible categories. No way is the law of inverse squares a manufacture.
Again, the dignified snail would appreciate that no useful purpose is served by invoking the less certain set of judicial exceptions for subject matter which does not fall within one of the eligible categories. For example, a natural product such as a block of marble, scoured wool or ginned cotton does not qualify as a “manufacture” as explained in the fundamentally important but insufficiently understood Hartranft case. By this reasoning gBRCA1 is not a composition of matter because it is not a composite article, and it does not qualify as a manufacture by mere isolation unaccompanied by sufficient new utility as correctly recognised by Justice Thomas in Myriad. It is wholly unnecessary to invoke the phenomenon of nature judicial exception to reach that conclusion, and doing so amounts to misclassification and confuses the law.
In the present case it is in my view open to doubt whether the claimed subject matter is sufficiently transformative to amount to an eligible process. It is inherently much better and sounder to consider this issue first, before going on to the extra-statutory exceptions.
Correspondingly if claimed subject matter falls as a matter of substance and not mere outward form within one of the eligible categories, it is then inappropriate to invoke an extra-statutory exception to deny patentability. This is an important Constitutional point as to separation of powers implicit in what is said in the CIPA brief in Sequenom. It is within the power to interpret the wording of the statute, but not to change or amend the statutory language absent some over-riding Constitutional reason.
My criticism of Hughes and other Federal Circuit judges for not dealing with statutory eligibility first therefore stands.
Mr. Cole,
If only such care and reason were more evident in the Supreme Court cases themselves.
Unfortunately, such wisdom is largely absent from the (very clear) thrust of the Supreme Court fingers into that wax nose of law known as 101.
Congress was so perturbed by a Court run amuck that they acted once before to refocus away from a Court that viewed the only valid patent was one that had not yet appeared before it.
We (evidently) need a stronger rebuke.
And I know just the one that deals with the non-original jurisdiction item of patent law appeals: jurisdiction stripping.
This would be entirely within the Constitutional powers of the Congress and as long as an (inferior) Article III court has review power***, the “sanctity” of Marbury would be maintained.
*** I would suggest a new and different inferior court than the brow-beaten Court of Appeals for the Federal Circuit: too much fire hose damage there.
“Correspondingly if claimed subject matter falls as a matter of substance and not mere outward form within one of the eligible categories, it is then inappropriate to invoke an extra-statutory exception to deny patentability.”
Agreed. But Paul, this is just another way of saying something that is said much more simply as this:
In cases of claims to mixed subject matter, some categorically eligible, some not, invention must be in the eligible.
But then we get the odd case of claims to principles in the abstract. The subject matter of these claims may be eligible, but the invention itself is not set forth in the claims, just the result achieved so that the claim covers the invention described and every other invention that may achieve the same result.
To me, this is not an issued involving the categories at all. It is a completely different issue entirely. Perhaps the best statute to address this issue is 112.
Absolutely NOT Ned – your “version” here is merely trying to spin what Paul stated to be something else entirely (your old CR@P “Point of Novelty” canard).
In truth, what Paul is saying should rankle your feathers as it sounds in the “old” “nominalist” approach of if the claim as as a whole is to a statutory category, you then move on without the judicial exceptions EVEN coming into play.
Of course, I would add the other part of 101: utility within the Useful Arts (and note that this is necessarily broader than the technical arts).
“This thread shows that the disagreement how to “do” eligibility is equally lively, both sides of the Atlantic”.
Yes, because its broken by information inventions on both sides of the Atlantic.
Until we have a test for which information is eligible (but abstract) and not eligible (equally abstract) and recognition that abstraction at eligibility differs from abstraction at patentability (claiming at the level of an idea) we are going nowhere but in circles, and East Texas will continue to be a killing field for hard-earned money.
This is a nice-write up, Jason. There’s a few important points worth further elaboration.
1) Enfish is basically a modestly better-written version of DDR, albeit a version that is based on claims that are arguably even junkier than those at issue in DDR (I know: hard to believe). Relational databases pre-dated Enfish’s claims by decades. The concept of a relational database was never patented, nor was a patent applied for. Perhaps some are wondering why that was the case? The answer, of course, is that when relational databases were conceived the idea of patenting the concept of — wait for it! — using rules (WOW!) and additional tables to determine how the content of a data cell should be interpreted was deemed absurd. Enfish’s alleged “innovation” here is a rule that says “look within the same table for further information.” Never mind that books (to take just one example) have referenced themselves internally since basically forever. This “self-referencing” concept is new and fundamental “computing techn0logy”! It’s so revolutionary, in fact, that there are precisely zero instances of the prior art teaching that you couldn’t do it. And the accused defendant doesn’t even infringe the claim. But, oh, such important “techn0logy”! It’s what made Enfish famous. Or, more accurately, it’s what made Enfish infamous.
2) Possible “solutions” to the judge-created dilemna of “What type of otherwise ineligible logic should we let people own for 20 years?” were proposed here years ago. I know that I and others discussed such “solutions” at least five years ago as part of an effort to encourage the willfully ign0rant patent maximalists to prepare for the future and possibly participate in shaping it (as opposed to standing in front of the steamroller and screaming at the sky). One of those proposed “solutions” was certainly to limit eligibility to logical “innovations” that increase computing speed/efficiency across the board, as opposed to “innovations” that amount to nothing more than applying existing computing technology to specific data contexts (e.g., “news data”, “video data”, “music data”, “entertainment data”, “game data”, “weather data”, “book review data”, “checking account data”, “real estate availability data”, “price data”, “Billy’s credit card number data”, “zoo animal feedings schedule data” etc etc etc ad nauseum).
Note that all these latter types of claims were always junk and but for (i) the CAFC’s “activist” coddling of patentees and (ii) the immense costs involved in taking a reasonsed defense up to the Supreme Court, nobody could ever enforce them against an attorney worth half his/her salt. If there was any question about the junkiness of those latter types of claims (and there shouldn’t have been, after Alice), these two cases — Enfish and TLI> — put those questions to rest.
3) Note that in (2) I use “solution” in quotes. That’s because the real solution is to simply eliminate the problem and declare (without fanfare, because none is needed) that logic is ineligible, whether it’s carried out by a person or by a computer that is functionally distinguished from other computers on the basis of the logic that it carries out. That’s what’s ultimately going to happen. It might happen in a year or two. I might happen in five years. But it’s going to happen. The only reason to delay the implementation of that solution is to provide The Most Important People Ever more time to grab some cash and stuff it into their pockets. Patents on logic embodied in software — and by “patents” I mean utility patents of the sort that we use to promote progress in the so-called “useful arts” — do not promote progress in software writing and they never will. All they do is promote lawyering and litigation.
4) The “additional clarity” brought by Enfish/TLI notwithstanding, the game-playing will undoubtedly continue. Moving forward (until the plug is pulled on the silliness), the debate will be over (i) what constitutes “an improvement in computer functionality” and (ii) what evidence will be required at the application and enforcement stage to establish the nexus between that alleged “improvement” and the asserted claims. In that regard, it’s worth noting that, in the wake of DDR, literally every patentee whose claims have been tanked in Rule 36 opinions argued that their claims fell within the scope of DDR. In nearly every case, those arguments were specious and probably worthy of sanctions (certainly true in the case of TLI!) but the system is set up to permit that kind of nonsense from patentees.
And so the farce will continue.
Oh, I almost forgot to comment on this:
the rejection of the tissue-paper argument that use of a computer automatically dooms the claim (it doesn’t).
Right. I’m not aware of anyone that has argued that “the use of a computer automatically dooms a claim.” I am aware, however, of Federal judges who argued that “the use of a computer automatically saves a claim.” After all, you can drop that computer on your foot and it would hurt! It’s tangible, so … totally eligible. Now that was a kind of “paper” argument, for sure, but “tissue paper” is far too kind.
Even all the people out there (like me) who believe that software has no business being anywhere near the patent system don’t make the “tissue paper” argument referred to by Jason. That’s because certain kinds of claims directed to computer-related innovations are absolutely patent eligible. Which kinds are those? Claims that recite new computers or computer components in objective structural terms which distinguish them from prior art computers (or computer components) on those terms.
And that’s where we’re going to end up when this farce is ended.